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How do you shield yourself from liability when faced with an allegation of discrimination? Document, document, and when in doubt document. One of the most effective ways is to be able to support the legitimacy of the challenged employment decision is a paper trail. This advice may seem simple and obvious, and it is, but it is surprising how rarely an employer is prepared. Often an employee’s personnel file fails to show his history of poor performance or record of repeated unexcused absences that led to his termination, creating an uphill battle when it comes to defending against claims that gender, race, religion, disability, or age was the real reason for the discharge.
What should we write in a file?
Performance problems. When you notice an employee is developing a habit of doing low quality work, turning in assignments late, or just generally slacking off on the job, be sure to take note of the problem and bring it to her attention. Make sure you document the fact that you discussed the problem with her. A note in her file will detract from her credibility if she later tries to allege she was never counseled about deficient work and therefore she wasn’t terminated for cause.
Misconduct, workplace rule violations, and employee disputes. Anytime you observe workplace misconduct or receive a report of it, write it down. If the incident involves a violation of a specific policy or rule, be sure to refer to the provision in your notes. Even if the infraction doesn’t in itself require discipline or the dispute seems petty or trivial, write it down. A record of repeated disciplinary problems may show a pattern of behavior that justifies taking adverse action.
Absenteeism and tardiness. Keeping accurate attendance records is important for numerous reasons, you will have a crucial defense should you need to defend a lawsuit by an employee whose poor attendance spurred a disciplinary action or termination decision. When a supervisor can precisely point to dates on a calendar, it is more persuasive than a general observation the employee was “often absent or late. Make sure you consistently record all absences, excused or unexcused, as well as all instances of tardiness should be documented. Keep attendance records for every employee, not just those who have a problem with absenteeism.
When and how should you document?
If you need to track poor performance or attendance issues, write a concise memo and place it the employee’s personnel file or make a note on your calendar. If you need to document misconduct, rule violations, or employee disputes, you should record a detailed account of the incident and identify the employees involved as well as any eyewitnesses.
Your documentation should provide an objective account of the relevant incident. Make sure you stick to the facts, and avoid any temptation to embellish or exaggerate. Similarly, avoid inserting personal opinions that may not be supported by the facts. Documentation need not be lengthy. To adequately serve its purpose, it should include enough detail and information to allow an objective reader to ascertain what occurred simply from reading your account of the facts.
Ideally, you should create your documentation as soon after the incident as possible, when the details are still fresh in your mind. Please note: if an incident causes your temper to flare or emotions to run high, be sure to wait until your anger or frustration subsides before writing up the incident. Finally, be sure to date the document and identify yourself as the author somewhere on the record.
Make employee evaluations count
Employers aren’t required by law to conduct employee performance evaluations. If you are going to conduct performance reviews, however, make sure you do more than “go through the motions” or treat the process like a chore or obligation. Conducting performance reviews with that mindset can end up hurting your ability to defend discrimination or wrongful discharge lawsuits. To avoid that predicament, keep these guidelines in mind when conducting performance appraisals:
The bottom line
An employment discrimination lawsuit can rarely supported by direct evidence of discriminatory intent. Rather, in the absence of clear proof, circumstantial evidence supports the majority of cases.
It’s no secret that courts and juries like documents. Use that to your advantage: make it a habit to contemporaneously document workplace issues and prepare accurate, honest employee performance evaluations. You’ll have a solid defense by building a paper trail that works for you and speaks for itself.